Citation NR: 9607717
Decision Date: 03/22/96 Archive Date: 04/02/96
DOCKET NO. 90-20 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for impotence secondary
to residuals of a back injury with laminectomy.
2. Entitlement to service connection for incontinence
secondary to residuals of a back injury with laminectomy.
3. Entitlement to service connection for a psychiatric
disorder secondary to residuals of a back injury with
laminectomy.
4. Entitlement to service connection for a right elbow
disorder secondary to residuals of a back injury with
laminectomy.
5. Entitlement to an increased evaluation for residuals of a
back injury with laminectomy, currently evaluated as 40
percent disabling.
6. Entitlement to a total rating for compensation purposes
based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S.D. Regan, Associate Counsel
INTRODUCTION
The veteran had active service from May 1978 to May 1982.
This matter came before the Board of Veterans' Appeals
(hereinafter "the Board") on appeal from October 1989 and
September 1993 rating decisions of the Roanoke, Virginia
Regional Office (hereinafter “the RO”). The October 1989
rating decision confirmed and continued a 40 percent
disability evaluation for the veteran’s residuals of a back
injury with laminectomy and denied entitlement to a total
rating for compensation purposes based on individual
unemployability.
In December 1990, the Board remanded this appeal to the RO so
that the veteran could be afforded a Department of Veterans
Affairs (hereinafter “VA”) examination and to obtain VA
outpatient treatment records. The September 1993 rating
decision denied service connection for impotence, for
incontinence, for a psychiatric disorder and for a right
elbow disorder secondary to the veteran’s service-connected
residuals of a back injury with laminectomy. An increased
evaluation was also denied for the veteran’s service-
connected back disorder.
In August 1994, the Board again remanded this appeal to the
RO to obtain outpatient treatment records, to obtain the
veteran’s VA vocational rehabilitation file and to afford the
veteran a computerized tomography scan or a magnetic
resonance imaging study of his lumbosacral spine. The
veteran was also to be contacted and requested to indicate
whether he was currently in receipt of disability benefits
from the Social Security Administration. In May 1995, the RO
issued a Supplemental Statement of the Case which confirmed
and continued previous decisions on all the issues included
in this appeal. The veteran’s claims folder was returned to
the Board, where it was received in October 1995.
The veteran has been represented throughout this appeal by
the Disabled American Veterans.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts on appeal that he is entitled to service
connection for impotence, for incontinence, for a psychiatric
disorder and for a right elbow disorder secondary to his
service connected residuals of a back injury with
laminectomy. The veteran also avers that he is entitled to
an increased evaluation for his residuals of a back injury
with laminectomy and that he is entitled to a total rating
for compensation purposes based on individual
unemployability. The veteran alleges that he incurred
impotence, incontinence, a psychiatric disorder and a right
elbow disorder as a result of his service-connected back
disorder. He also argues that his current symptomatology
indicates that a higher disability evaluation is warranted
for his back disorder and that his service-connected
disability renders him unable to secure and follow any form
of substantially gainful employment consistent with his
education and occupational experience. The accredited
representative has requested that this case be remanded in
order to afford the veteran additional VA examinations by
appropriate specialists.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
well-grounded claims for service connection for impotence,
for incontinence, for a psychiatric disorder and for a right
elbow disorder secondary to residuals of a back injury with
laminectomy. It is also the decision of the Board that a
preponderance of the evidence is adverse to the veteran’s
claim for an increased evaluation for his residuals of a back
injury with laminectomy and to his claim for a total rating
for compensation purposes based on individual
unemployability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. Service connection is presently in effect for residuals
of a back injury with laminectomy evaluated as 40 percent
disabling.
3. Competent evidence reflecting the current existence of
impotence, incontinence and a right elbow disorder has not
been presented.
4. The record contains no probative evidence of an
etiological relationship between the veteran’s psychiatric
disorder and his service-connected residuals of a back injury
with laminectomy.
5. The veteran’s lumbar spine disorder is productive of no
more than severe intervertebral disc syndrome with severe
limitation of motion of the lumbar spine.
6. The veteran has reported that he completed one year of
college. He reported occupational experience as an
insulation contractor, a dock worker, a sawmill worker, cook
and as a mental health assistant. The veteran reportedly
last worked on a full time basis in July 1988.
7. The veteran is not unemployable due to his service-
connected disability.
CONCLUSIONS OF LAW
1. The claims for entitlement to service connection for
impotence, for incontinence and for a right elbow disorder
secondary to residuals of a back injury with laminectomy are
not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp.
1995).
2. The claim for service connection for a psychiatric
disorder secondary to residuals of a back injury with
laminectomy is not well-grounded. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1995).
3. The schedular criteria for an evaluation in excess of 40
percent for residuals of a back injury with laminectomy have
not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1995);
38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295
(1995).
4. A total rating for compensation purposes based on
individual unemployability due to the veteran’s service-
connected disability is not warranted. 38 U.S.C.A. §§ 1155,
5107 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321, 3.340,
3.341, 4.16 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is necessary to determine if the veteran has
submitted well-grounded claims within the meaning of 38
U.S.C.A. § 5107(a) (West 1991 & Supp. 1995), and if so,
whether the VA has properly assisted him in the development
of his claims. A “well-grounded” claim is one which is not
implausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A
review of the record indicates that the veteran’s claims for
an increased evaluation for residuals of a back injury with
laminectomy and for entitlement to a total rating for
compensation purposes based on individual unemployability are
well-grounded and that all relevant facts have been
developed. It is observed that the accredited representative
has requested that this case be remanded in order to afford
the veteran additional VA examinations by appropriate
specialists. The Board notes that the veteran has been
afforded recent VA examinations in February 1991, January
1992, September 1992, May 1993 and October 1994. The Board
is satisfied that the total clinical and other documentary
evidence available is sufficient for appellate determination
of the issues presently on appeal and that a third remand is
not warranted in this case.
As discussed below, the Board finds that the veteran’s claims
for service connection for impotence, for incontinence, for a
psychiatric disorder and for a right elbow disorder secondary
to residuals of a back injury with laminectomy are not well-
grounded, and therefore, there is no further duty to assist
the veteran with development of those claims.
I. Service Connection for Impotence, for Incontinence and
for a Right Elbow Disorder Secondary to Residuals of a Back
Injury with Laminectomy
Service connection may be granted for a disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (1995). Service
connection is in effect for residuals of a back injury with
laminectomy.
Medical history
An April 1979 hospital narrative summary noted that the
veteran was admitted with acute onset of low thoracic and
lumbar back pain. The final diagnosis included low back
pain, etiology undetermined. An August 1980 operation report
noted that the veteran underwent a hemilaminectomy on the
left side of L5 and a bilateral spine fusion from S1 to L5.
The operative diagnosis was L5 spondylolysis and spina bifida
with mild spondylolisthesis. The September 1980 hospital
narrative summary reported final diagnoses of spondylolysis
with spondylolisthesis, L5-S1. A December 1980 hospital
narrative summary noted a final diagnosis of status post
laminectomy and bilateral posterolateral fusion. A July 1981
consultation sheet indicated a diagnosis of chronic lower
back syndrome.
VA treatment records, hospital discharge summaries and
examination reports dated from May 1984 to July 1988 referred
to the veteran’s back disorder, as did a September 1986
statement from Geoffrey W. Curwen, M.D. VA treatment records
dated from January 1989 to March 1991 indicated that the
veteran was treated for disorders including a back disorder
and a right shoulder pain. A January 1990 VA medical
certificate noted that the veteran held his elbow in a fixed
position and seemed to have a great deal of pain on
straightening. It was reported that there was a great deal
of tenderness in the biceps and triceps muscles. A diagnosis
of chronic musculoskeletal pain was indicated. A February
1990 VA hospital discharge summary noted an impression which
included pain and numbness of the right arm. The diagnoses
included history of right shoulder pain and history of low
back syndrome. A February 1991 VA examination report noted
that the veteran denied changes in bowel or bladder or loss
of sexual function.
In a September 1992 statement on appeal, the veteran reported
that he would sometimes wet himself and that his sex life was
“intermittent” due to his back disorder. He reported that
his right leg gave way and he had fallen and injured his
right elbow. He stated that he was told he had a bone chip
in his right elbow which caused restriction in elbow motion.
The veteran underwent VA orthopedic and neurological
examinations in September 1992. The orthopedic examiner
diagnosed chronic low back pain apparently stemming from a
service-connected injury. As to the neurological examination
it was noted that the veteran did not wear pads for
protection from urinary incontinence. The examiner diagnosed
status post L5 hemilaminectomy and bilateral spinal fusion,
L5-S1, spina bifida spondylolisthesis, right L5
radiculopathy, residuals of initial injury and chronic back
pain possibly related to the initial injury and subsequent
surgery. In a November 1992 addendum, the neurological
examiner noted that the veteran reported that he was unable
to maintain an erection. He related that he had an inability
to postpone urination at all times. The veteran stated that
if he drank a soft drink, he would have to go the bathroom in
approximately ten minutes. The examiner noted that the
veteran was not able to tell her whether or not he was able
to postpone urination until he arrived at the bathroom. The
veteran also reported that he would sometimes have to wrap
toilet paper around his urethra in order to protect his
underwear and indicated that he had “soiled himself” on
occasion. The examiner reported that she did not know what
to make of the veteran’s complaints and noted that he did not
report such symptoms a month and a half earlier at the time
of his orthopedic and neurological examinations.
The veteran underwent a VA psychiatric examination in May
1993. He reported that he would “pee” in his paints if
someone walked up behind him. He indicated that he had
trouble keeping an erection. The examiner diagnosed
somatoform disorder and personality disorder, not otherwise
specified. The veteran underwent a VA urological examination
in May 1993. He reported that he had problems holding his
urine, that he would lose his urine at just about anytime and
that he experienced anuresis during sleep. The examiner
noted that the veteran had not made such complaints known to
anyone at anytime since his back surgery. The examiner
reported that he did not find any excoriation of the skin and
indicated that if the veteran were losing urine all the time
he would probably have some excoriation. It was also noted
that the veteran did not wear any sort of pad or incontinent
device. The veteran’s underwear were not soaked with urine.
The examiner noted that results of a post-void residual test
were not unusual. The examiner commented that he did not
think that the veteran had a significant problem with
inability to hold urine.
In a February 1994 statement on appeal, the veteran stated
that he had never been able to afford “pads” for
incontinence. He stated that he would simply fold toilet
paper and place it in his underwear. The veteran related
that he had frequently wet the bed. He also stated that
while sometimes he was able to achieve an erection, he was
seldom able to complete sexual “fulfillment”.
The veteran underwent a VA orthopedic examination in October
1994. It was noted that the veteran reported frequency of
urination and “some problems with wetting himself.” The
veteran stated that he passed urine at least one time per
hour per day and that he had to get up several times a night
and would occasionally wet the bed. The veteran also related
that he had trouble obtaining an erection for the last two
years. The examiner indicated an impression of bulging disc
at L3-L4 and status post partial laminectomy at L5-S1. It
was noted that there was no evidence of herniated nucleus
pulposus.
Analysis
In order for a claim of secondary service connection to be
well-grounded, there must be a (1) service-connected
disability, (2) competent evidence of current disability
claimed to be secondary to the service-connected disability,
and
(3) a nexus between the service-connected disability and the
current claimed disability, i.e. there must be medical
evidence indicating that the current claimed disability may
be proximately due to or be the result of the service-
connected disease or injury. Furthermore, the evidence
needed to establish secondary service connection for any
particular disability must be competent. That is, the
presence of a current claimed disability requires a medical
diagnosis; and, where an opinion is used to link the current
claimed disorder to the service-connected disability, a
competent opinion of a medical professional is required. See
Caluza v. Brown, 7 Vet.App. 498 (1995).
The Board has carefully reviewed the evidence of record to
determine if there are well-grounded claims for entitlement
to service connection for impotence, incontinence and a right
elbow disorder secondary to service-connected residuals of a
back injury with laminectomy. Because the veteran is
service-connected for the back disorder, the first element of
a well-grounded-claim is met.
The Board has made a careful longitudinal review of the
record. As to impotence and incontinence, the Board notes
that VA orthopedic and neurological examinations in September
1992 failed to diagnose such disorders. The May 1993 VA
urological examination report indicated that the examiner did
not find excoriation of the skin which would be indicated if
the veteran were losing his urine all the time. The examiner
reported that he did not think the veteran had a significant
problem with inability to hold urine. The May 1993 VA
psychiatric examination report and the October 1994 VA
orthopedic examination report did note the veteran’s
complaints as to impotence and incontinence. However, such
disorders were not diagnosed. As to a right elbow disorder,
a January 1990 VA medical certificate indicated that the
veteran held his elbow in a fixed position and reported pain
on straightening. A February 1990 VA hospital discharge
summary noted an impression which included pain and numbness
of the right arm. In a September 1992 statement on appeal,
the veteran reported he had a bone chip in his right elbow
caused by a fall in which his right leg gave way. The Board
observes, however, that there is no clinical evidence of
record indicating that the veteran presently suffers from a
right elbow disorder.
A service connection claim must be accompanied by evidence
which establishes that the claimant currently has the claimed
disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 144
(1992); see also Brammer v. Derwinski, 3 Vet.App. 223, 225
(1995) (absent “proof of a present disability there can be no
valid claim”). The clinical and other probative evidence of
record fails to indicate that the veteran presently suffers
from impotence, incontinence or from a right elbow disorder.
Further, there is no objective evidence of record indicating
any etiological relationship between such disorders and the
veteran’s service-connected residuals of a back injury with
laminectomy. The Board notes that in statements on appeal,
the veteran has alleged that he suffers from impotence,
incontinence and a right elbow disorder as a result of his
back disorder. The Board notes that that the veteran, as a
layman, is not competent to establish that such disorders are
a result of his back disorder. See Grottveit v. Brown, 5
Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App.
492, 495 (1992). Accordingly, in the absence of competent
evidence establishing that the veteran currently experiences
the claimed disorders, the Board concludes that the veteran’s
claims for service connection for impotence, incontinence and
a right elbow disorder secondary to residuals of a back
injury with laminectomy are not plausible and therefore not
well grounded.
II. Service Connection for a Psychiatric Disorder Secondary
to
Residuals of a Back Injury with Laminectomy
Medical history
VA treatment records and examination reports as well as
private medical statements dated from May 1984 to June 1986
referred to the veteran’s service-connected back disorder An
April 1987 VA hospital discharge summary noted that the
veteran was admitted with complaints of low back pain. It
was noted that there was a strong psychogenic overlay to the
veteran’s complaints. The diagnoses included chronic low
back pain, intermittent muscle spasms in the lumbosacral area
and adult adjustment reaction. At the February 1989 hearing
on appeal, the veteran testified as to his back disorder.
VA treatment records dated from January 1988 to March 1991
indicated that the veteran was treated for disorders
including his back disorder and a psychiatric disorder. A
November 1989 VA hospital psychiatric evaluation report noted
that the veteran had undergone a spinal fusion and that he
complained about all aspects of it. It was noted that the
veteran was preoccupied with his disability. The examiner
diagnosed somatoform pain disorder; secondary, late onset
dysthymia; personality disorder, not otherwise specified with
passive-aggressive and narcissistic components and post back
fusion. A December 1989 VA hospital discharge summary
indicated similar diagnoses. A February 1990 VA consultation
sheet indicated a provisional diagnosis of adjustment
disorder with depressed mood. A February 1990 VA hospital
discharge summary indicated that the veteran was admitted for
narcotic analgesics and related thoughts of killing himself.
He complained of depression, decreased sleep related to right
arm pain and decreased appetite for one month. The diagnoses
included somatoform pain disorder; personality disorder, not
otherwise specified; and history of right shoulder and low
back pain.
In his September 1992 substantive appeal, the veteran
reported that his frustration, anger and anxiety made it hard
for people to be around him. He stated that he had a lot of
anger and that he would want to hurt someone who made fun of
him. VA orthopedic and neurological examinations in
September 1992 referred to solely to the veteran’s back
disorder. A November 1992 addendum to the neurological
examination noted that the veteran reported that his constant
pain made him irritable and depressed and “hateful”.
The veteran underwent a VA psychiatric examination in May
1993. The examiner noted that the veteran reported multiple
psychiatric symptoms including anxiety and depression. The
examiner indicated that the veteran’s symptoms were varying
and inconsistent. The examiner noted that at one time the
veteran attributed his anxiety to his back pain, but at
another time, he said that it was directly due to the
emotional pressure of trying to simultaneously go to college
and work a full-time job. At one point the veteran
attributed his depression to back pain, but at another point
related it to his inability to maintain social relationships,
particularly with women. It was also noted that the veteran
described constant disabling back pain, but in the same
interview told of hitting a man which the examiner indicated
was inconsistent with a crippling back condition. The
examiner noted that the veteran’s psychiatric symptoms
appeared to be primarily due to personality disorder traits
and somatization defenses. The diagnoses were somatoform
pain disorder and personality disorder, not otherwise
specified with prominent histrionic and borderline traits.
In a February 1994 statement on appeal, the veteran reported
that since his back injury he would have nightmares and awake
in a “jerk” soaked with sweat.
Analysis
As discussed above, the three elements of a well-grounded
claim are: (1) evidence of a service-connected disability;
(2) evidence of a current disability as provided by a medical
diagnosis; and (3) a nexus between the service-connected
disability and the current disability, as provided by
competent medical evidence. See Caluza v. Brown, 7
Vet.App. 498 (1995).
The Board has weighed the probative evidence of record.
Element (1), the existence of a service-connected disability,
has been satisfied. Element (2), the existence of a current
disability, has also been met. However, the May 1993 VA
psychiatric examination report indicated that the veteran’s
psychiatric symptoms appeared to be primarily due to
personality traits and somatization defenses. The diagnoses
were somatoform pain disorder and personality disorder, not
otherwise specified, with prominent histrionic and borderline
traits. The Board observes that there is no clinical
evidence of record indicating that the veteran’s psychiatric
disorder is etiologically related to his service-connected
back disorder. The Board notes that in statements on appeal,
the veteran has alleged that his back disorder caused his
psychiatric disorder. It is observed that the Court has held
that lay assertions of medical causation do not constitute
competent evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet.App. 492, 495 (1992). In the absence of any
objective evidence indicating an etiological relationship
between the veteran’s psychiatric disorder and his service-
connected residuals of a back injury with laminectomy, the
Board finds that element (3) of a well-grounded claim has not
been satisfied. The benefit sought on appeal is therefore
denied.
III. Increased Evaluation for Residuals of a Back Injury
with Laminectomy
A. Historical Review
The veteran’s relevant service medical records were described
above. Post-service medical records indicated that he
underwent a VA examination in May 1984. The examiner
diagnosed residuals of a back injury status post laminectomy
with low back pain and limitation of motion and muscle
spasms. In June 1984, service connection was granted for
residuals of a back injury with laminectomy. A 40 percent
disability evaluation was assigned. A June 1986 VA
examination report indicated a diagnosis of rear back injury
with laminectomy and low back pain with limitation of motion.
A June 1986 rating decision reduced the veteran’s disability
evaluation for residuals of a back injury with laminectomy
from 40 percent to 20 percent.
The veteran underwent a VA examination in July 1988. The
diagnoses included status post herniated nucleus pulposus and
status post laminectomy with bilateral spinal fusion 1980,
sacralization of the lumbar spine and post-surgical arthritis
of the lumbar spine with nerve encroachment. A March 1989
rating decision increased the disability evaluation for the
veteran’s residuals of a back injury with laminectomy from 20
percent to 40 percent. The 40 percent disability evaluation
has remained in effect since that decision.
B. Increased Evaluation
Disability evaluations are determined by comparing the
veteran’s present symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § 3.321(a), Part 4 (1995). A 40
percent evaluation is warranted for severe intervertebral
disc syndrome with recurring attacks with intermittent
relief. A 60 percent evaluation requires pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm and an absent ankle jerk or
other neurological findings appropriate to the site of the
diseased disc and little intermittent relief. 38 C.F.R.
§ 4.71a, Diagnostic Code 5293 (1995). Severe limitation of
motion of the lumbar spine warrants a 40 percent evaluation.
38 C.F.R. § 4.71a, Diagnostic Code 5292 (1995). Ankylosis of
the lumbar spine at a favorable angle warrants a 40 percent
evaluation. A 50 percent evaluation requires fixation at an
unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5289
(1995). A 40 percent evaluation is warranted for severe
lumbosacral strain manifested by listing of the whole spine
to the opposite side, a positive Goldthwait’s sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritis changes, or narrowing or
irregularity of the joint space, or some of the above with
abnormal mobility on forced motion. 38 C.F.R. § 4.71a,
Diagnostic Code 5295 (1995).
Words such as “ severe” are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence to the
end that its decisions are "equitable and just". 38 C.F.R.
§ 4.6 (1995). It should also be noted that use of
terminology such as "minimal" by VA examiners and others,
although an element of evidence to be considered by the
Board, is not dispositive of an issue. All evidence must be
evaluated in arriving at a decision regarding an increased
rating. 38 C.F.R. 4.2, 4.6 (1995).
VA treatment records dated from January 1989 to March 1991
indicated that the veteran was treated for his back disorder.
A February 1991 VA examination report noted that the veteran
reported that he had aching discomfort in his lower back
which would spread into the right leg and into the right
lateral aspect of the right foot. It was noted that the
general neurological examination with respect to cranial
nerves and upper extremities was within normal limits except
for a slight reduction of the triceps reflex on the right.
With respect to the lower extremities, the left ankle jerk
was 1+ while the right was 2+. There was no definite
weakness of L5 or S1 motor function. Sensory examination
revealed decreased appreciation of pinprick over the L5
dermatome on the right including the dorsal aspect of the
foot and the dorsum of the right great toe. S-1 and L4
sensory function on the right extremity were normal. The
veteran had a well-healed scar on his back. There was no
apparent tenderness over the spine itself.
In his September 1992 substantive appeal, the veteran
reported that he had severe muscle spasms shooting “electric
type shocks” down his right leg and his right foot which
caused him to stumble. He stated that he used a TENS unit
and wore a back brace to reduce his back motion.
The veteran underwent VA orthopedic and neurological
examinations in September 1992. The orthopedic examiner
noted that the veteran had bilateral lower lumbar paraspinous
muscle tenderness. It was noted that the veteran had normal
sensation except for a slight decrease in sensation to light
touch and pinprick on the right S1 distribution. The
examiner reported that X-rays showed apparent L4-S1
posterolateral fusion. There was no evidence of a L5-S1
spondylolisthesis or spondylolysis due to fusion. The
veteran did have very slight retrospondylolisthesis at L3 and
L4, possibly secondary to the fusion below that level. The
impression was chronic low back pain.
The September 1992 VA neurological examination report noted
that examination revealed absolutely no muscle or skin
atrophies. There was a well-healed, midline lumbar scar
related to the veteran’s old surgery. There was a
significant degree of lumbar paraspinal muscle tightness and
all reflexes were present and symmetrical bilaterally. The
veteran’s plantar responses were reflexor bilaterally and he
did not have any weakness in the individual muscle testing.
The examiner note that there was relative hyperesthesia to
pin prick on the right L5 distribution. Low back movements
to either side were performed very well although the veteran
indicated an inability to extend his back or bend forward.
The examiner diagnosed status post L5 hemilaminectomy and
bilateral spinal fusion, L5-S1, spina bifida
spondylolisthesis, right L5 radiculopathy, residuals of
initial injury and chronic back pain possibly related to the
initial injury and subsequent surgery. The examiner
commented that she detected some paraspinal muscle tightness
which indicated that some pain existed although the degree of
severity could not be determined. The examiner also remarked
that there is no doubt that the veteran was suffering form
low back pain with minimal residuals of L5 radiculopathy.
In a February 1992 statement on appeal, the veteran reported
that he only used his TENS unit before he went to sleep at
night, in the morning or when his pain was at its worst. He
stated that he would constantly have to lie down to comfort
his back. In an October 1994 statement on appeal, the
veteran related that his back hurt from his buttocks to the
base of his skull.
The veteran underwent a VA orthopedic examination in October
1994. He reported lots of pain in the lower right back and
down his right leg as well as pain in his right hip where a
graft was taken. The examiner noted that the veteran leaned
to the left and had a scoliosis convex to the left in the
thoracic and to the right in the lumbar area. The
musculature of the back was good. It was noted that at first
the veteran’s gait was normal, then he began limping on his
right leg. There was tenderness at T3, T4, T11, T12, L1, L2,
L4, L5 and to the right and left of L3-L4 and L4-L5. The
veteran had muscle spasms to the left of L2-L3 and tenderness
in the right buttocks. There was a scar in the midline which
was well healed and unsightly. Reflexes and pulses were
normal in the lower extremities and light touch was decreased
on the right anterior thigh, the right lateral thigh, the
right anterior calf, the right lateral calf, the right medial
foot, the right anterior foot and the right lateral foot.
The examiner noted that the veteran flexes his back forward
only from 0 to 25 degrees with severe pain reported at T4
through S1. Extension was from 0 to 10 degrees with severe
pain reported at T4-S1. Right lateral flexion was from 0 to
15 degrees with left from 0 to 20 degrees. Right and left
lateral rotation was from 0 to 15 degrees.
The examiner noted that a computerized tomography scan of the
lumbar spine showed L3-L4 mild diffuse disc bulging producing
a minimal impingement upon the cecal sac. It was noted that
this did not appear to effect the existing L3 roots. L4-L5
was within normal limits and L5-S1 showed a partial
laminectomy. There was no demonstrable herniated nucleus
pulposus. There was minimal degenerative changes involving
some of the facet joints. The impression was bulging disc
L3-L4 and status post partial laminectomy at L5-S1 with no
evidence of herniated nucleus pulposus.
Analysis
The Board has made a careful longitudinal review of the
record. Based on the evidence of record, it appears that the
veteran experiences symptomatology productive of no more than
severe intervertebral disc syndrome with recurring attacks
and intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code
5293 (1995). The Board notes that the most recent October
1994 VA orthopedic examination indicated that the veteran had
muscle spasms to the left of L2-L3 and the September 1992 VA
neurological examination indicated that he had paraspinal
muscle tightness. However, symptoms compatible with sciatic
neuropathy and absent ankle jerk have not been shown. The
October 1994 VA examination report related normal reflexes
and pulses in the lower extremities. There was decreased
pain and light touch in the lower right extremity. The
September 1992 VA neurological examination related that the
veteran had minimal residuals of L5 radiculopathy and the
September 1992 orthopedic examination related that the
veteran had a slight decrease in sensation to light touch and
pinprick in the right S1 distribution. The February 1991 VA
examination report noted left ankle jerk of 1+ and right
ankle jerk of 2+.
The clinical and other probative evidence of record fails to
indicate that the veteran suffers from pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to the site of the diseased
disc with little intermittent relief as required for an
increased evaluation pursuant to the schedular criteria noted
above.
The Board further observes that the October 1994 VA
examination report noted flexion of 0 to 25 degree, extension
of 0 to 10 degrees, rotation, right and left of 0 to 15
degrees and right lateral flexion of 0 to 15 degrees with
left 0 to 20 degrees. The Board observes that the veteran
clearly suffers from severe limitation of motion of the
lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292
(1995). His present 40 percent disability evaluation refects
such limitation. Ankylosis of the lumbar spine has not been
shown. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (1995). The
evidence of record also indicates that the veteran suffers
from symptomatology productive severe lumbosacral strain
which is also reflected in the veteran’s present disability
evaluation. The Board also finds that the veteran’s present
40 percent disability evaluation encompasses his functional
impairment due to pain. 38 C.F.R. § 4.40 (1995). As the
clinical and other probative evidence of record fails to
indicate symptomatology consistent with a disability
evaluation in excess of 40 percent, the Board concludes that
an increased evaluation for the veteran’s residuals of a back
injury with laminectomy is not warranted.
The Board has considered the potential application of various
provisions of Title 38 of the Code of Federal Regulations
(1995), whether or not they were raised by the veteran, as
required by the holding of the United States Court of
Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589,
593 (1991). In particular, the Board finds that the evidence
does not suggest that the veteran’s back disorder is
productive of such an exceptional or unusual disability
picture so as to render impractical the applicability of the
regular schedular standards and thereby warrant the
assignment of an extraschedular evaluation under the
provisions of 38 C.F.R. § 3.321(b)(1) (1995). Specifically,
a pattern of repeated hospitalizations or what could be
considered marked interference with actual employment, beyond
that contemplated by the regular schedular standards, is not
shown.
IV. Total Rating
Total disability ratings for compensation purposes based on
individual unemployability may be assigned where the combined
schedular rating for the veteran’s service-connected
disabilities is less than 100 percent when it is found that
such disorders are sufficient to render the veteran
unemployable without regard to either his advancing age or
the presence of any non-service-connected disorders.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341
(1995). The provisions of 38 C.F.R. § 4.16(a) (1995),
provide, in pertinent part, that:
Total disability ratings for compensation
may be assigned, where the schedular
rating is less than total, when the
disabled person is, in the judgment of
the rating agency, unable to secure or
follow a substantially gainful occupation
as a result of his service-connected
disabilities: Provided that, if there is
only one such disability, this disability
shall be ratable at 60 percent or more,
and that, if there are two or more
disabilities, there shall be at least one
disability ratable at 40 percent or more,
and sufficient additional disability to
bring the combined rating to 70 percent
or more. . . . It is provided further
that the existence or degree of non-
service-connected disabilities or
previous unemployability status will be
disregarded where the percentages
referred to in this paragraph for the
service-connected disability or
disabilities are met and in the judgment
of the rating agency such service-
connected disabilities render the veteran
unemployable.
Further, a total rating may be granted irrespective of the
combined schedular rating where it is shown that the
veteran’s service-connected disabilities render him
unemployable. 38 C.F.R. §§ 3.321(b), 4.16(b) (1995).
In turning to the facts of the instant appeal, the Board
notes that service connection is in effect for residuals of a
back injury with laminectomy evaluated as 40 percent
disabling. This is the veteran’s only service-connected
disability. Therefore, the veteran does not meet schedular
requirements set for in 38 C.F.R. § 4.16(a) (1995). Given
this fact, the Board need next to address whether the
veteran’s service-connected disability nevertheless renders
him unemployable.
38 C.F.R. § 4.16(b) (1995).
The veteran has reported that he completed one year of
college. He reported occupational experience as an
insulation contractor, a dock worker, a sawmill worker, a
cook and as a mental health assistant. The veteran
reportedly last worked on a full time basis in July 1988.
At the February 1989 hearing on appeal, the veteran testified
that he was unable to find employment as there was no viable
employment in the area where he lived. He reported that he
would have muscle strains and pulls if he tried to work. The
veteran stated that he was able to clean his house, but it
would aggravate his back disorder. He reported that his last
employment was with an insulation company. The veteran
indicated that he had difficulty with walking, but that he
was able to walk around the block. The veteran reported that
he would shoot guns once or twice a week. In a December 1989
statement on appeal, the veteran indicated that he had sought
employment, but had not been hired due to his service-
connected back injury.
A February 1991 VA examination report noted that the veteran
reported that he had aching discomfort in his lower back and
right lateral aspect of the foot which was made worse by
lifting any objects or prolonged standing. He reported that
this resulted in the loss of numerous jobs. As noted above,
the veteran underwent VA orthopedic and neurological
examinations in September 1992. As to the orthopedic
examination, it was noted that the veteran reported that he
had worked as a nurse’s aid, but was forced to quit his job
five years earlier due to back pain. The veteran indicated
that he had tried part-time employment, but could not stand
for over three to four hours at a time. An impression of
chronic low back pain stemming from a service-connected
injury preventing the veteran from returning to work was
noted. As to the neurological examination, it was noted that
the veteran reported that he had worked as a short order cook
a few weeks earlier, but felt tired after standing in front
of the grill for hours. The veteran underwent a VA
psychiatric examination in May 1993. He reported that he
would be denied jobs due to his back disorder. A May 1993
urological examination report indicated that the veteran had
a great deal of psychological problem with chronic pain and
his reported inability to work because of it.
In a February 1994 statement on appeal, the veteran reported
that he had very limited “lifting” capacity due to his back
pain. He reported that he was unable to maintain a permanent
job where he lived as the jobs available involve physical
labor. He stated that he was forced to quit a couple of jobs
due to heavy lifting and bending. He reported that he was
employed as a cook, but he had to lift heavy objects and
stand on a concrete floor which, exacerbated his pain. The
veteran related that he was unable to stand for any amount of
time, lift any amount of weight or bend over anymore than
once or twice. In an October 1994 statement, the veteran
indicated that he pain was so unbearable that he could not
hold employment.
The Board has carefully reviewed the report of the most
recent VA orthopedic examination of record, in October 1994.
The examiner noted that the veteran’s gait was normal at
first, but he then began limping after several minutes. No
physiological reason was given for this phenomenon. The
examiner further reported that during the examination, the
veteran “acts as if he is in extreme pain in the back”.
Despite his initially normal gait, during the examination,
“he moves slowly and acts as if every step hurts him
severely.”
The Board has weighed the probative evidence of record. The
veteran has reported completing one year of college and has
reported occupational experience as an insulation contractor,
a dock worker, a sawmill worker and as a mental health
assistant. He had apparently also attempted employment as a
cook in 1992. The Board acknowledges that the veteran’s
service-connected disability, discussed at length above,
impairs, to some extent, his ability to perform industrial
activities. However, the clinical and other probative
evidence of record does not support a finding that the
veteran’s service-connected disability precludes him from
pursuing all forms of substantially gainful employment
consistent with his education and occupational experience.
The Board notes that in his hearing testimony the veteran
reported that he was able to clean his house, walk around the
block and shoot guns. He is therefore apparently able to
perform some physical activity.
In conclusion, the evidence of record does not indicate that
the veteran is precluded from all forms of employment. The
Board observes that no physicians’ opinions or other clinical
statements are of record which indicate that the veteran’s
service-connected disorder renders him unemployable. The
veteran’s service-connected disorder has simply not been
shown to be of such severity as to preclude his ability to
perform all forms of substantially gainful employment
consistent with his education and occupational experience,
should such an opportunity be presented to him. Accordingly,
entitlement to a total rating for compensation purposes based
on individual unemployability is not warranted.
ORDER
Service connection is denied for impotence, for incontinence,
for a right elbow disorder and for a psychiatric disorder
secondary to residuals of a back injury with laminectomy.
An increased evaluation for residuals of a back injury with
laminectomy is denied.
A total rating for compensation purposes based on individual
unemployability is denied.
BARRY F. BOHAN
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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